WikiLeaks and the myth of ‘Net neutrality

Online retailers have mostly sided with those supporting so-called ‘Net neutrality, fearing that if those who control the Internet’s data pipes could send some data faster than others they might, for instance, deliver video more slowly from an e-retailer that didn’t pay extra for faster service. The events surrounding WikiLeaks this week make clear there are more direct threats to the neutral treatment of Internet content.

In response to WikiLeaks beginning to release some of what it says are 251,000 confidential U.S. government documents, the web site has come under attack from key providers of Internet services. Amazon Web Services, a unit of online retailer Amazon.com Inc. that rents server capacity and other web services, stopped providing hosting services to WikiLeaks. (WikiLeaks had briefly moved its site to Amazon Web Services after its site, previously hosted in Sweden, came under attack and was briefly offline.) Then Visa, MasterCard and PayPal all stopped handling payments to WikiLeaks.

Those moves were aimed at strangling WikiLeaks by depriving it of two essential elements for web survival: servers that can feed content to web users and the money to operate.

PayPal, a subsidiary of eBay Inc., has been the most forthcoming in explaining why it acted. Its executives have said the U.S. State Department provided it with a copy of a letter to WikiLeaks founder Julian Assange and his lawyer saying the release of the cables would be a violation of U.S. law if the release were not authorized. Even this letter from the State Department does not directly accuse Assange or WikiLeaks of a crime.

Many commentators are accusing Assange of crimes, including espionage and treason (although since Assange is Australian the treason charge seems far-fetched.) And Assange and WikiLeaks may ultimately be found guilty of criminal acts. But at this point there are no charges filed anywhere to my knowledge against Assange or WikiLeaks. (No, Assange has not been charged with rape in Sweden; the Swedish authorities want to question him about sexual relations with two women, which by all press accounts were at least initially consensual.) The denial-of-service attacks this week against MasterCard, Visa and PayPal are criminal, but there is no evidence WikiLeaks was responsible.

Should charges be filed against WikiLeaks or Assange, it would be up to the courts to decide guilt or innocence. In this country everyone is innocent until proven guilty. In the case of WikiLeaks, powerful companies like Amazon, Visa, MasterCard and eBay/PayPal have chosen to judge WikiLeaks guilty even before charges are filed, much less brought to court.

There’s an important precedent to keep in mind. In 1971, a U.S. government employee named Daniel Ellsberg released a long history of U.S. involvement in Southeast Asia that the U.S. government had prepared for its own use. He argued that what came to be known as the Pentagon Papers demonstrated that the government had for years misrepresented its actions to the American people.

After the New York Times published an article based on material contained in the Pentagon Papers, the U.S. government convinced a federal appeals court to stop further publication of material from the government document. However, just a few weeks later, the U.S. Supreme Court, in a 6-3 vote now viewed as a landmark free speech decision, ruled that the government could not prevent publication of the material.

The high court did not say the release of the documents was legal or that the New York Times and other publications were immune from prosecution for disseminating the information. But it held that the right of a free press to publish, and of the people to know, trumped the government’s concerns that the document’s release might compromise national security. As New York Times correspondent R.W. Apple wrote 25 years later, “the Constitution, in the Court's view, makes prior restraint impermissible even if there is some danger to national security.”

It’s worth noting that Julian Assange is not the Daniel Ellsberg figure in today’s instance since he was not the one who released the documents; Assange is more akin to the publisher of the New York Times who decided to publish material that came into the newspaper’s possession. No one made a serious effort to put the New York Times out of business in 1971. Yet there are obviously many anxious to silence WikiLeaks before it releases all the documents in its possession.

Is there a threat here to Internet retailers? Perhaps there is. While it’s hard to imagine an online retailer provoking the kind of actions directed against WikiLeaks, if I were importing Persian rugs from Iran for sale online I’d be concerned about the future of my business should relations between the U.S. and Iran deteriorate.

What the WikiLeaks controversy tells me is that access to the Internet in the U.S. is largely controlled by big companies that are susceptible to government pressure. In light of that, the threat that some day a cable provider might slow down the download speed of a retailer’s video seems trivial.